Spaulding v. Mineah

Hill, P. J. The plaintiff, three-year-old grandson of defendant, has recovered a judgment compensatory for injuries received while a passenger in an automobile owned by defendant, and driven by her under a learner’s permit. “ The holder of a learner’s permit shall not operate or drive a motor vehicle unless at all times under the immediate supervision and control of a driver duly licensed under this article. No person who is not so licensed shall instruct another, nor shall anyone give instructions to any person who does not hold a learner’s permit in force and effect. Any person when instructing another shall be liable with him for any breach of this chapter, or of any local ordinance, rule or regulation.” (Vehicle & Traffic Law, § 20, subd. 4.) Plaintiff’s mother, Mrs. Spaulding, a licensed driver, accompanied him on the ride with her mother, the defendant, and was concerned with the operation of the car as provided in the above-quoted section of the law. Defendant had taken lessons from an instructor and on at least two previous occasions had driven the automobile when accompanied by Mrs. Spaulding. On the day of the accident, defendant, driving southerly on West street in Cortland, at about ten miles an hour, turned easterly into West Main street. Failing to complete the turn, the right front wheel of the car passed over the southerly curb about forty feet east of the intersection of the streets. The car struck a mail box and a tree. The injuries to plaintiff resulted from the collision. At the time this — 462 — turn was made, plaintiff was seated on his mother’s knee, with her right arm about him. It is asserted that Mrs. Spaulding was negligent as matter of law and that, as her negligence was imputable to the plaintiff, a reversal is required. According to well-considered authorities, under conditions similar to those here presented, the negligence of a parent in his duty as a custodian is a subject-matter apart from that arising through careless driving or management of the vehicle. (Kupchinsky v. Vacuum Oil Co., 238 App. Div. 457; Lewin v. Lehigh Valley R. R. Co., 52 id. 69; affd., 165 N. Y. 667; Hennessey v. Brooklyn City R. R. Co., 6 App. Div. 206.) Under the logic of these authorities, Mrs. Spaulding’s negligence in her connection with the operation of the car would not be imputable to the infant, while the improper exposure of the child to danger would amount to negligence in custodianship and would be imputable. Interesting and technical as is this distinction, it is not presented in this case, for the trial judge in his charge submitted to the jury as imputable to plaintiff, Mrs. Spaulding’s alleged negligence both in custodianship and in relation to the operation of the car. No exception was taken. Negligence of Mrs. Spaulding connected with the operation of the car could have arisen only through her failure to warn defendant, or to take over the management of the car, probably by applying the emergency brake. Her duty in this regard, in view of the sudden emergency, was a question of fact which was decided by the jury in favor of the plaintiff. Imputable negligence as a custodian there would be if an ordinarily prudent mother would not have taken the child for this ride with a driver as inexperienced as defendant, or, if she as custodian did not use prudence in warning defendant, or in failing to remove plaintiff from the car if defendant’s operation thereof was negligent. Such reckless conduct in beginning or continuing the ride as would amount to contributory negligence and prevent a recovery by Mrs. Spaulding against defendant had she brought an action would be imputable to and prevent a recovery by the infant. This is the standard by which to measure imputable negligence set by the Hennessey, Lewin and Kupchinsky cases cited above. The fact that defendant was operating the car under a learner’s permit is not important. It has been decided that driving without a license, or doing any act in violation of statutory requirements, is unimportant unless the violation was a contributing cause to the injury. (Klinkenstein v. Third Avenue R. Co., 246 N. Y. 327; Corbett v. Scott, 243 id. 66; Martin v. Herzog, 228 id. 164.) In Ward v. Barringer (123 Ohio St. 565) the opinion says: “Mere knowledge by a passenger of reckless driving, or of violation of law — 463 — by an automobile or taxi driver, does not ipso facto preclude Mm from recovery, if he used the degree of care that ordinarily prudent men would have used under like or similar circumstances; and that issue becomes a question for the jury. (Dowd v. Atlas Taxicab Co., 187 Cal. 523; Bauer v. Tougaw, 128 Wash. 654; Bryden v. Priem, 190 Wis. 483.) ” In Griffin v. Hustis (234 Mass. 95) plaintiff had been injured through a collision of his automobile with a railroad train. The automobile was being driven by an unlicensed chauffeur who had been employed by the plaintiff. The opinion says: “It is settled by Conroy v. Mather (217 Mass. 91), that plaintiff’s violation of the provisions of tMs act [forbidding the employment of an unlicensed chauffeur] is some evidence of negligence. But it could not be ruled that such negligence directly contributed to his inuries, so as to preclude Mm as matter of law from recovering.” The authorities in this State do not sustain appellant’s argument that Sorrentino v. Sorrentino (248 N. Y. 626) prevents a recovery by a child agamst its grandmother when the facts disclose that they lived in separate households, the cMld residing with and receiving its care, protection and support from its own parents. (Allen v. Allen, 246 N. Y. 570; Stanley v. National Union Bank, 115 id. 122; Crosby v. Crosby, 230 App. Div. 651; Delaware, L. & W. R. Co. v. Petrowsky, 250 Fed. 554; 43 Harvard Law Review, p. 1030.) The judgment should be affirmed, with costs. Rhodes, Bliss and Heffernan, JJ., concur; McNamee, J., dissents, with an opimon.